An adoption order does not confer citizenship by operation of law; an adopted child must be born to lawful parents to qualify under citizenship provisions.

Rohana Yusof J:

[1]This is an application for judicial review made under O 53 of the Rules of the High Court 1980 (RHC), seeking for an order of certiorari to quash the decision of the respondent. The application also sought for a declaration that, Foo Shi Wen is a citizen by operation of law following an adoption order made by the High Court under the Adoption Act 1952

BRIEF FACTS

The facts leading to this application are these. The applicant is a Malaysian Citizen. In September 2004, he started a relationship with a Thai lady (Ms Ngamta Thongsom) which cumulated in an unregistered marriage between them in Thailand on 21 July 2005. The marriage was neither registered under the governing laws of Thailand (Civil and Commercial Code of 1935, 1976 and 1990) nor in Malaysia under the Law Reform (Marriage and Divorce) Act 1976

A male child named Foo Shi Wen was born out of that relationship. He was born in Malaysia on 10 March 2006 as seen from his original birth certificate BR 15099 in exh FTA2. The certificate states him as ‘bukan warganegara’. He took the citizenship of his mother. He however was at all times under the care of his biological father, the applicant and his grandmother in Kuala Lumpur.

The relationship between the applicant and Ms Ngamta broke down. She returned to Thailand and voluntarily relinquished her parental rights over Foo Shi Wen boy to the applicant. The applicant then applied and obtained an adoption order of the child pursuant to the Adoption Act 1952, vide Kuala Lumpur High Court Originating Summons No S8–21–1 of 2009 (as shown in exh FTA3).

Thereafter, the applicant applied to the National Registration Department for a new birth certificate to be issued to Foo Shi Wen pursuant to s 25 of the Adoption Act 1952 (see exh FTA4). A new certificate was issued to the child with his citizenship status as ‘bukan warganegara’.

The applicant now seeks to quash that decision of the respondent on the ground of error of law on the basis that the respondent failed to issue a birth certificate with his status as citizen by operation of law. The applicant contended that the impugned decision contradicts a pronouncement of the Kuala Lumpur High Court in another judicial review application R1–25–343 of 2008. Accordingly the High Court in that application had directed that the adopted child in that case be issued with birth certificate with his citizenship following that of his adoptive parent. Therefore relying on that authority it is the applicant’s case that the citizenship of Foo Shi Wen should follow his adoptive father, the applicant.

Further to that, learned counsel for the applicant Cik Goh Siu Lin submitted that the citizenship of Foo Shi Wen should follow the adoptive father because by virtue of the adoption order he should be treated as if he was born to the applicant like his natural child. That being so, learned counsel argued that Foo Shi Wen would qualify and can be deemed to be a child born to a parent either one of whom is a citizen on Malaysia, as envisaged by art 14 of the Federal Constitution.

From the facts and the arguments put forth by learned counsel for the applicant the main issues to be deliberated are these:

(a)whether the child in this application qualifies to be a citizen by operation of law;

(b)whether an adoption order granted would suffice to qualify an adoptive child as citizen by operation of law under art 14(1)(b) of the Federal Constitution; and

(c)whether a writ of mandamus can be issued against the respondent to register the child as citizen resulting for the adoption order.

Matters relating to issues on citizenship are stipulated under Part III of the Federal Constitution. Of relevance to this application is art 14. Article 14 stipulates the necessary requirements for a person to become a citizen of the Federation by operation of law.

Learned federal counsel Puan Najwa bt Bistaman submitted that art14(1)(b) read together with the Second Schedule Part II s 1(a) entails two main requirements to be